US torture set to continue despite the McCain amendment

So Republican senators have finally stood up to President Bush. At least, thats what people said when Senator John McCain and 45 of his fellow Republicans approved a McCain-sponsored amendment intended to eliminate the abuse of detainees. The legislation, which passed in a 90-9 vote on October 6, even drew the support of former Secretary of State Colin Powell, who said, in a letter to McCain, that the legislation “will help deal with the terrible public diplomacy crisis created” by the abuse of Iraqi prisoners at Abu Ghraib. Not so fast.

However much McCain might want to stop the abusive practices, his bill will not reduce the use of torture by agents of the United States engaged in the global war on terrorism. Nor will it help America’s image abroad. The legislation will not end the Bush administration’s shadow war, which includes the use of torture as a tool. And individuals around the world enraged by America’s use of torture are unlikely to believe an amendment tacked onto a spending bill will stop such horrific practices.

Why not? First, its not clear whether McCain’s legislation places any new constraints on the conduct of interrogations — where much of the alleged abuse occurs. The amendment’s first section requires that soldiers adhere to the standards of the Army Field Manual when conducting interrogations. Yet, in a directive issued by President Bush on February 7, 2002, the military was ordered “to treat detainees humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva,” which the Field Manual standards already follow.

While McCain’s amendment does not allow for the “military necessity” of torture, the administration has already declared in a December 30, 2004, Justice Department memo that there are no exceptions “permitting torture to be used for a ‘good reason.’ ” Similarly, in a January 27, 2005, interview with the New York Times, President Bush declared that torture is never acceptable, nor do we hand over people to countries that do torture. So while McCain, in his statement before the Senate, emphasized the importance of reducing confusion, it is unclear how the new law can be any more clear than the Bush administration’s present policy.

McCain has also stressed that the second part of his legislation would prevent inhumane acts from being committed by any agent of the United States government, even those not in uniform. But techniques utilized by intelligence agencies, especially the Central Intelligence Agency, will not be constrained by the amendment. While the McCain legislation prohibits inhumane acts from being conducted on any detainee “in the custody or under the physical control of the United States Government,” intelligence agencies have become adept at exploiting the concept of “physical control” in order to prevent findings that they have committed illegal acts.

CIA agents, for example, have shielded themselves from charges of committing torture or inhumane acts by creating artificial walls; activities and acts of torture committed are merely conducted by their counterparts in foreign countries yet who are effectively controlled by American agents. The case of the “Salt Pit” — an Afghan-owned detention facility that became the subject of a Justice Department investigation after one of its detainees froze to death, as reported in March by the Washington Post — is illustrative. Though the CIA funded the facility and made key operational decisions, the CIA officer who ordered the interrogation that resulted in the death of a detainee by hypothermia was not prosecuted. The reason: The Justice Department found that the Salt Pit was outside the jurisdiction of the United States.

Similarly, there has been no indication that the administration has discontinued the terrifying practice of “extraordinary rendition,” in which individuals detained as part of terrorism investigations have been transported, without recourse to due process, to places like Egypt, Jordan, Morocco, and Syria — countries whose intelligence agencies are widely alleged to employ torture as a matter of routine. As in the “Salt Pit” case, CIA agents never commit the acts themselves, and so the McCain provision will not constrain them.

McCain seems to mean well with the prohibitions he is promoting. It’s difficult to doubt his sincerity; he was, as is well known, a victim of torture himself during the Vietnam War. But the Bush administration sees no need for his legislation. White House Press Secretary Scott McClellan said on October 5, that the administration views the McCain amendment as “unnecessary and duplicative.” McClellan also claimed that the prohibitions “would limit the president’s ability as commander-in-chief.” McClellan was confirming that the law will not tie the hands of the shadowy characters behind the President’s policies of torture. Rather, the McCain amendment is another clash in a long line of executive-legislative conflicts over who controls foreign and defense policies.

If McCain really wanted to pick another fight in this long line of disputes, he should have gone further. In addressing the Senate, he insisted that “the cruel actions of a few darken the reputation of our country in the eyes of millions.” But our reputation will still be darkened when extraordinary renditions and “host-nation facilities” are used to create legal cover for American agents, with the same terrible result: torture and inhumane treatment.